OSHA Enforcement Initiatives Expand for Nursing Care Facilities

by Kymberlee Dougherty Tysk

Historically, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has included nursing care facilities as one of their “target industry sectors” for inspection and enforcement of their standards due to the industry ranking among the highest in occupational injury and illness rates. OSHA has also recently announced that they will be expanding their enforcement initiatives in these high risk industries by launching a new, one-year pilot program focused on the accuracy of injury and illness data recorded by employers in order to discover and correct any under-recording.

OSHA’s new attention on recordkeeping is being funded by a $1 million allotment by the Obama Administration for “recordkeeping enforcement initiatives,” and comes in the wake of a Congressional hearing and investigation into under-recording by the Government Accountability Office (GAO), the auditing arm of Congress.

The report by the GAO, which examined the audits performed by OSHA from 2005 to 2007, concluded that employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of the nationwide data that OSHA compiles each year through its annual survey that includes participants from over 80,000 organizations with forty or more employees. The GAO cited several academic studies that found that OSHA data failed to include up to two-thirds of all workplace injuries and illnesses.

OSHA has responded with a national emphasis program (NEP) on recordkeeping where employers selected for examination, which is based on those with below average injury and illness rates, will face what amounts to a comprehensive audit of their business records. Compliance officers have been directed to review an extensive list of documents, including employee health records, workers’ compensation records, insurance records, payroll records (including absentee records), and if available, safety incident reports, first-aid logs, and disciplinary records pertaining to injuries and illnesses in order to verify the accuracy of the data recorded on the various OSHA forms. The 2007 data that was collected in the 2008 OSHA survey provides the basis for the 2009 program, which means that calendar year’s records will be the information inspected.

In addition, the inspection calls for interviews of employees, management, and the designated recordkeeper, along with a walk-around of the main areas of the facility so as to determine consistency with the recorded injuries or illnesses, as well as address any OSHA violations in “plain view.” Moreover, if an employer has in place a safety incentive program, it will be reviewed in order to determine if the program discourages recording of injuries and illnesses, which is a violation and can result in citations and penalties.

As evidenced by the rigorous protocol established, OSHA is clearly sending a message to the regulated community that the agency recognizes the importance and utility of accurate injury and illness records, and that they are intent on expending resources to identify and correct the issue of inaccurate recording.

Although OSHA has in the past acknowledged that recordkeeping violations are generally characterized as “other than serious,” compliance with OSHA’s recordkeeping standards cannot be taken lightly as there is potential for significant monetary penalties. Where OSHA has found numerous and apparently systemic recordkeeping violations in the past, the agency has issued separate citations for each distinct violation and has, in some instances, classified individual citation items as willful, which carries potential criminal liability for intentionally certifying that the record entries are true, accurate and complete when that is not the case.

Given the heightened emphasis on recordkeeping violations, all skilled nursing providers should be prepared for the possibility of an examination of their recordkeeping procedures, which includes an evaluation of their recordkeepers’ knowledge of OSHA requirements.

Accordingly, it would be wise for organizations to evaluate whether their facilities are compliant with OSHA recordkeeping requirements by conducting internal audits to ensure their policies and practices are in accordance with all applicable standards and correct any deficiencies identified. In addition, training should also be given to managers on how to respond to OSHA inquiries and audits. Further, because the NEP requires a mandatory site inspection, employers should train their personnel to be mindful of any potential unsafe working conditions, as well as ensure proper training has occurred in the areas of hazard communication, lockout/tagout, and electrical and machine guarding standards, which are areas most often cited for violation.

Lastly, it is unfortunate that a company’s efforts to promote workplace safety might be viewed as a disincentive for reporting workplace injuries, but in light of OSHA’s interest in ensuring accurate injury and illness recordkeeping, any company with an injury-free incentive program should review the program and seek professional advice about whether the program should be modified or potentially discontinued entirely.

For more information, visit www.OSHA.gov.

This document is intended for informational purposes only and is not intended to be, and should not be construed as, legal advice in any particular case or circumstance.